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APPEAL
COURT, HIGH COURT OF JUSTICIARY
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Lord Macfadyen
C. G. B. Nicholson, Q.C.
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[2007] HCJAC 39
Appeal No: XC50/07
OPINION OF THE COURT
delivered by LORD MACFADYEN
in
NOTE OF APPEAL AGAINST SENTENCE
by
VINCENT PAUL BARRON
Appellant;
against
HER MAJESTY'S ADVOCATE,
Respondents.
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Act: J. Scott, Solicitor Advocate; Adams Whyte.
Alt: Henderson A.D.; Crown Agent.
17 July 2007
[1] On 11
December 2006
the appellant pled guilty at Kirkcaldy Sheriff Court to one charge of distributing or
showing indecent photographs or pseudo-photographs of children, contrary to
section 52(1)(b) of the Civic Government (Scotland) Act 1982, as amended. The libel covered the period from 1 May to 24
August 2005.
[2] On 23
January 2007
the sheriff imposed an extended sentence of twenty-six months, comprising a
custodial term of fourteen months and an extension period of twelve
months. The custodial term was
discounted by two months in respect of the appellant's plea of guilty, which
was tendered at the trial diet.
[3] The offence
came to light in the course of investigation of another offender. A warrant was obtained to search the
appellant's home address. Various items
of computer equipment were seized. The
appellant was detained and interviewed, and said:
"I have, through chat rooms,
exchanged photographs of a sexual and pornographic nature and some of these
images will have included children under the age of sixteen years."
He could not explain why he had acted in that way. Interrogation of his computer disclosed that
he had distributed ten images which contravened the relevant statutory
provision to one other person. The
images in question were of children between the ages of 5 and 12 years. Categorised according to the system approved
in R v Oliver [2003] Cr App R 28 at paragraph 10, of the ten images
distributed by the appellant, six were in the least serious category, one in
the second category and three in the fourth category.
[4] Mr Scott, who
appeared for the appellant, informed us that, following his imprisonment on 23
January 2007,
the appellant had remained in custody until released on interim liberation on 20 April 2007.
He had thus served a period approximately equal to that of a sentence of
six months imprisonment. The appellant
is fifty years of age. He has no
previous convictions. Indeed, hitherto
he has led a useful life as a public servant.
He had had a successful career in the probation service for England and Wales.
At the time of the offence he was on secondment to the Home Office as a
program manager for the implementation of a national database called "Visor",
the Violent and Sexual Offenders Register.
[5] Mr Scott
accepted that the offence of distribution, to which the appellant had pled
guilty, was more serious than the offence of possession of such images. He emphasised, however, that only ten images
had been distributed, that they had been distributed to only one recipient,
that the distribution had not been for payment, and that the majority of the
images had been in the two lowest categories, with only three in category 4 and
none in category 5.
[6] Mr Scott
submitted that the information before the sheriff as to risk had been
unsatisfactory. That information had
included a report by Professor Turkington, a consultant psychiatrist, which had
been obtained on the appellant's behalf.
In it, the view was expressed that the appellant had, at the material
time, been suffering the symptoms of work-related stress with a marked
deterioration in his mental health. The view was therefore expressed that there
was "some psychiatric mitigation" in the case.
Mr Scott relied on that. However,
on the question of risk, Professor Turkington said:
"It is my view ... that [the appellant]
is likely at the current time to be best viewed as a high risk of
repetition. It is however my view that
this high risk would be likely to be reduced to moderate or even to low if he
was to attend the Sexual Offenders Treatment Programme."
Mr Scott informed us that Professor Turkington had
subsequently explained that view as a generalisation based on internet
offending. The Pre-Sentence Report
provided by the National Probation Service took a more optimistic view of risk,
although there was some inconsistency in the way the report was expressed. The risk of reconviction was assessed at low,
and the risk of harm in the event of re-offending was assessed as medium. Despite these assessments, however, there was
later reference to managing "the significant risks" posed by the
appellant. The sheriff appeared to have
relied on Professor Turkington's reference to high risk, and the reference by
the author of the probation report to significant risks.
[7] Mr Scott
referred to the guidance to be found in Ogilvie
v H. M. Advocate 2001 SCCR 792,
where Lord Sutherland, delivering the opinion of the court, said (quoting with
approval Kennedy LJ in R v Toomer [2001] 2 Cr App R (S) 30):
"... sentences
up to the statutory maximum should be imposed where there is a contested case,
where there is evidence of commercial or large scale exploitation, and the
amount of material is significant.
Non-custodial disposals should normally be reserved for isolated offences
where the amount of material is very small and it is for personal use or use
within a very restricted circle as, for example, by passing it to one other
recipient, where there is no commercial element and the defendant has pleaded
guilty and is a first offender. Where
between these two extremes a particular case falls will depend on the
circumstances, such as the quality and nature of the material and the quantity
thereof, whether there is any element of exploitation or commercial gain, to
what extent there has been distribution, the character of the defendant and
whether there has been a plea of guilty coupled with co-operation in the
investigation."
The sheriff had been wrong to dismiss Ogilvie as concerned merely with possession, not distribution. Reference was also made to Oliver, to Kay v H.M. Advocate [2005] HCJAC 48, and to Taylor v H. M. Advocate (7
May 2002).
[8] Mr Scott
submitted that, if the present case was one in which a custodial sentence was
appropriate at all, it was only marginally so.
When account was taken of the time that the appellant had already spent
in custody, the appropriate course now was to substitute a
probation order with, as recommended in the Pre-Trial Probation Report,
a condition requiring attendance at the Internet Sex Offenders Treatment
Programme. That would serve the public
interest by enabling the appellant to obtain treatment which might reduce
whatever risk he truly presented.
[9] One matter
referred to by the sheriff in his report was the chat room conversation that
had accompanied the distribution. He
found it particularly offensive and alarming, and apparently took it into
account as a factor in concluding that there should be a custodial
sentence. The terms of that conversation
were not originally before us, but were provided at our request. Having seen them, we endorse the sheriff's
characterisation of them. We observe,
however, that the offence lies in the distribution of the images, rather than
in the offensive terms in which the appellant referred to them. Mr Scott informed us that the appellant was
heavily under the influence of alcohol at the time.
[10] We have come
to the conclusion that the sheriff was entitled to take the view that the
circumstances of the present case fell into the category where a custodial
sentence was appropriate, although it fell close to the border line. We are persuaded, however, that on a fair
reading of the material before us the risk presented by the appellant does not
truly come up to the standard required to justify an extended sentence. Taking account of the fact that the appellant
has already served the equivalent of a sentence of six months imprisonment, we
consider that the preferable way forward, in the public interest, is to allow
the appeal, quash the extended sentence imposed by the sheriff, and substitute
a probation order with the recommended condition that the appellant attend the
Internet Sex Offenders Treatment Programme.
